Citation Nr: 1124244
Decision Date: 06/24/11 Archive Date: 06/29/11
DOCKET NO. 09-18 851 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M.W. Kreindler, Counsel
INTRODUCTION
The Veteran served on active duty from June 1950 to June 1954, and from September 1954 to August 1971.
This matter came to the Board of Veterans' Appeals (Board) from a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in July 2010; the transcript is of record. This matter was remanded in October 2010. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran does not have hearing loss disability in the right or left ear for VA disability compensation purposes.
2. Tinnitus was not manifested during service, and current tinnitus is not otherwise related to the Veteran's active service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2010).
2. Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.
In April 2008, a VCAA letter was issued to the Veteran with regard to his claims of service connection. The letter notified the Veteran of what information and evidence is needed to substantiate his claims, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the evidence necessary to support a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).
In Bryant v. Shinseki, 23 Vet App 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing the duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge outlined the issue on appeal and suggested evidence that may support his claim that his disability had its onset in service or is due to service. Moreover, this matter was remanded in October 2010 to attempt to obtain outstanding private treatment records. In any event, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.
The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the October 2010 Board Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's service treatment records are on file. At the Board hearing, the Veteran testified that he had sought private audiological treatment approximately two years prior and that he had submitted the records; however, no private treatment records were on file. Subsequent to the Remand, private records were associated with the record from Roy D. Carlson, M.D, which includes April 2007 correspondence and an August 2010 private treatment report. In December 2010 correspondence, the Veteran stated that he had been unable to locate his records from H.I.P./Bayley Seton Uniform Service in Medford, New Jersey as the facility was closed. As such records are unavailable, no further requests are warranted. 38 C.F.R. § 3.159(c)(1). There is otherwise no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). In June 2008, the Veteran was afforded a VA audiological examination, and an etiological opinion was proffered. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).
For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues in appellate status.
Criteria & Analysis
Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.
Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993).
The lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court:
[W]here the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary).
On a Report of Medical History completed by the Veteran in June 1950 for enlistment purposes, he checked the 'No' boxes for 'ear, nose or throat trouble' and 'running ears.' On a June 1950 Report of Medical Examination conducted for enlistment purposes, he scored a 15/15 on a whispered voice test.
On a June 1954 Report of Medical Examination conducted for separation purposes, his 'ears-general' were clinically evaluated as normal, and he scored a 15/15 on a whispered voice test.
On a Report of Medical History completed by the Veteran in September 1954, he checked the 'No' boxes for 'ear, nose or throat trouble' and 'running ears.' On a September 1954 Report of Medical Examination conducted for re-enlistment purposes, his 'ears-general' were clinically evaluated as normal, and he scored a 15/15 on a whispered voice test.
On an April 1959 Report of Medical Examination, his 'ears-general' were clinically evaluated as normal, and he scored a 15/15 on a whispered voice test. Audiometric testing was performed. VA audiometric readings prior to June 30, 1966, and service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standards Organization (ISO) units. Audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
10
15
15
LEFT
15
10
15
15
15
On a Report of Medical History completed by the Veteran in May 1961, he checked the 'No' boxes for 'ear, nose or throat trouble' and 'running ears.' On a May 1961 Report of Medical Examination, his 'ears-general' were clinically evaluated as normal, and he scored a 15/15 on a whispered voice test. Converted audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
20
10
10
10
LEFT
10
10
0
10
10
On a February 1962 Report of Medical Examination, his 'ears-general' were clinically evaluated as normal. Converted audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
5
5
20
LEFT
10
15
5
10
15
On a Report of Medical History completed by the Veteran in December 1962, he checked the 'No' boxes for 'ear, nose or throat trouble' and 'running ears.'
On a Report of Medical History completed by the Veteran in October 1964, he checked the 'No' boxes for 'ear, nose or throat trouble' and 'running ears.' On an October 1964 Report of Medical Examination, his 'ears-general' were clinically evaluated as normal. Converted audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
0
10
10
LEFT
5
10
0
10
10
On a Report of Medical History completed by the Veteran in January 1968, he checked the 'No' boxes for 'hearing loss,' 'ear, nose or throat trouble,' and 'running ears.'
On a Report of Medical History completed by the Veteran in May 1971, he checked the 'No' boxes for 'hearing loss,' 'ear, nose or throat trouble,' and 'running ears.' On a May 1971 Report of Medical Examination, his 'ears-general' were clinically evaluated as normal. Audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
0
15
0
LEFT
0
0
0
10
5
In February 2008, the Veteran filed a formal claim of compensation for hearing loss and tinnitus. With regard to when the disabilities began, he put a question mark.
Correspondence dated in April 2007 from Dr. Carlson states that the Veteran sought treatment that day due to problems with his ear. He reported hearing loss which his wife had been complaining about. Dr. Carlson stated that the Veteran was undergoing an audiogram which he was sure would show some sensorineural hearing loss based on age and noise exposure from his days in the Air Force. Audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
25
-
30
LEFT
10
10
10
-
15
It appears that the speech discrimination scores for both ears were 100 percent. The examiner noted normal limits for speech, and mild high frequency loss.
In June 2008, the Veteran underwent a VA examination. It was noted that the Veteran served in the Air Force for over 20 years. His chief complaints were that he had ringing in his ears and some hearing loss. As a result of this hearing loss, he often needs conversations to be repeated. He is uncertain of the onset of the hearing loss; however, it has remained the same over the years. No ear pathology or ear surgery was reported. The presence of constant tinnitus was reported to be in both ears with the onset in approximately 1980. Occasionally he experiences vertigo. During service, he was exposed to excessive noise when he was an aircraft electrician and he worked on a flight line and was around engine noise for 21 years. While in Vietnam, he was around rockets for one year. He wore hearing protection while on the flight line but not during Vietnam. Outside of service, he had recreational noise exposure in the form of hunting beginning at age 17 for approximately 2 to 3 years without hearing protection. On audiological evaluation, there was normal hearing in the right ear at all frequencies tested, and the left ear indicated normal hearing up to 200 hertz suffering mild sensorineural hearing loss at the high frequencies. Specifically, audiometric testing reflected puretone findings as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
20
25
25
LEFT
15
15
15
30
30
The puretone average in the right ear was 21 and the puretone average in the left ear was 23. Speech discrimination scores were 96 percent in both ears. The examiner stated that the claims folder was reviewed. When the Veteran entered the military in 1950, there was a voice test only administered which was normal, however, this type of testing is not sensitive to any high frequencies. He continued to have hearing tests from 1961 until time of discharge in 1971 and all hearing tests were within normal limits in both ears at those times. Therefore, his hearing loss is not caused as a result of noise exposure while in the military since his hearing was normal upon discharge and there was no evidence of hearing loss within a year of discharge. His tinnitus was not caused as a result of noise exposure while in the military since he did report the onset of tinnitus was in 1980 many years after he left service.
An August 2010 treatment report from Dr. Carlson reflects that the Veteran sought a consultation for ringing in ear bilaterally which had become chronic. The examiner noted that the Veteran was seen for hearing loss and tinnitus and has had tinnitus for many years. He served as an airplane electrician in the Air Force for many years. He has problems hearing his wife at times but not usually otherwise. The duration was noted to be 4 to 5 years. Upon audiometric testing, the assessment was mild hearing loss. The examiner noted that it was "less than I would expect by age alone. The tinnitus is still the result of the loss but nothing can or need be done about it."
According to the audiometric testing performed during the Veteran's period of active service, to include upon his separation from active service, his hearing was within normal limits in both ears. Likewise, on post-service audiological testing, hearing has been within normal limits.
As detailed hereinabove, impaired hearing will be considered to be a disability only when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent.
In this case, on in-service and post-service audiological testing none of the auditory thresholds in any of the frequencies from 500 through 4000 Hertz have been 40 decibels; and, speech recognition scores have not been less than 94 percent. On audiological testing in April 2007, there is only one auditory threshold greater than 26 decibels in the right ear and none greater than 26 decibels in the left ear; and, on audiological testing in June 2008, there are only two auditory thresholds greater than 26 decibels in the left ear and none greater than 26 decibels in the right ear. Thus, there are no objective findings of auditory thresholds for at least three of the frequencies (500, 1000, 2000, 3000, or 4000 Hertz) of 26 decibels or greater. Consequently, in this case, the Veteran's hearing is within normal limits in both ears. 38 C.F.R. § 3.385. The Board acknowledges that the April 2007 private examiner diagnosed mild high frequency loss, and the June 2008 VA examiner diagnosed mild sensorineural hearing loss at high frequencies in the left ear. However, the auditory thresholds at 6000 and 8000 Hertz are not for consideration per § 3.385. Impaired hearing at these auditory thresholds is not considered a disability for VA purposes. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). In other words, in the absence of proof of present disability, in this case impaired hearing per § 3.385, there can be no valid claim. As there is no probative medical evidence of a hearing loss disability during service and following service in this case, as defined by the applicable regulation, the claim must be denied.
As a disability is not shown, the first element of a service connection claim has not been met, and thus it is not necessary to discuss an etiological relationship to service.
The Board has considered the Veteran's contention that he has a hearing loss disability and that such disability is due to noise exposure during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005).
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).
In this capacity, the Board acknowledges the statements and testimony from the Veteran with regard to his noise exposure experienced during service. Even if the Board were to concede that the Veteran had noise exposure during service and find his assertions credible, the fact remains that he does not have a disability for VA purposes. While the Veteran is competent to attest to his hearing problems and while the Board finds such assertions credible, the Veteran is not competent to attest to a hearing loss disability; which requires proper audiological testing conducted by an appropriate examiner. Thus, the Veteran's assertions as to hearing loss problems during and following service are outweighed by the medical evidence which reflects that he does not have hearing loss for VA purposes.
Without the required proof that he has a current hearing loss disability, the Board need not determine whether there is a correlation between for all intents and purposes a nonexistent disability and his military service because this, quite simply, is an impossibility. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and, Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998).
As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss disability, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107.
Tinnitus
The Veteran asserts that his tinnitus is due to service; however, he told the VA examiner that his tinnitus did not begin until 1980. Likewise, he told an April 2010 private examiner that he had experienced tinnitus for "many years."
Service treatment records are void of any complaints or diagnoses of tinnitus.
At the June 2008 VA examination, the examiner noted the Veteran's report that his tinnitus began in or about 1980. As detailed hereinabove, the Veteran's hearing was within normal limits except for a mild sensorineural loss in the left ear. With regard to his tinnitus, the examiner stated that his tinnitus was not due to service since he reported a date of onset in 1980 many years after he left service.
Upon review of the entire evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for tinnitus.
The Veteran has specifically denied an onset of tinnitus during service, and has stated for the purposes of undergoing an examination that the onset of his tinnitus occurred in approximately 1980, nine years after separation from service. Based on the negative service treatment records and the Veteran's reported post-service date of onset, the June 2008 VA examiner opined that it was less likely that his tinnitus was due to military noise exposure in service. The opinion of the VA examiner leads to a finding that the Veteran's tinnitus is less likely than not related to service. The Board accepts the VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995).
The Board has considered the Veteran's contention that a relationship exists between his current tinnitus, and noise exposure experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005).
In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).
In this capacity, the Board acknowledges the statements and testimony from the Veteran with regard to his noise exposure experienced during service. The Board finds such statements credible, and concedes that the Veteran likely had noise exposure during his 20 plus years of military service. He is also competent and credible to attest to his symptomatology associated with his tinnitus. By the Veteran's own admission, however, he has stated that his constant tinnitus did not manifest until approximately nine years after separation from service. Based on the negative service treatment records and a reported post-service date of onset, the VA examiner provided a negative etiological opinion, and the Board finds that the Veteran is not competent to attribute his current tinnitus to noise exposure, as he does not have the appropriate medical expertise. For such reasons, the Veteran's contentions as to in-service incurrence are outweighed by his own statements and testimony, and the opinion of the VA examiner which reflects that his tinnitus is not due to noise exposure in service.
In sum, the Board is left with the Veteran's lay contentions that he did not experience constant tinnitus during service, he did not experience constant tinnitus until after nine years after separation from service, and a medical opinion to the effect that such current tinnitus is not etiologically related to noise exposure in service. There is no contrary medical opinion of record.
The questions involved regarding causation are medical in nature. As discussed above, the medical opinion of the VA examiner (based on a review of the claims file and with knowledge of the Veteran's in-service duties) was negative. Under these circumstances, the Board is unable to find that there is a state of equipoise of the positive evidence and negative evidence. The preponderance of the evidence now of record is against the Veteran's claim of service connection for tinnitus.
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
Entitlement to service connection for tinnitus is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs